MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  24 May 2000
	DOCKET NUMBER:   AR2000035610

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. John M. Slone		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Mark D. Manning		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS: That his records be corrected to show that he was retired in the rank of private first class (PFC), pay grade E-3.  He provides copies of his WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) and WD AGO Form 100 (Separation Qualification Record), dated 8 April 1946; his DD Form 214 (Report of Separation from the Army of the United States) and DA (AGO) Form 494 (Retirement Certificate), dated 31 July 1950.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD: The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from alternate sources and from the individual concerned.

On 15 May 1943, he was inducted into the Army of the United States.  He served until 8 April 1946, when he was honorably separated in the rank of PFC.  He had 2 years, 10 months and 24 days of creditable service.

On or about 27 February 1948, he reenlisted in the Army and served until he was separated for physical disability on 31 July 1950 in the rank of private (E-2) and placed on the retired list on 1 August 1950.  He had 2 years, 5 months and 4 days of creditable service on that enlistment and a total of 5 years, 3 months and 28 days.

In the absence of evidence to the contrary, a presumption of regularity applies that the applicant’s records are correct.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 31 July 1950, the date he was discharged for a physical disability.  The time for the applicant to file a request for correction of any error or injustice expired on 31 July 1953.

The application is dated 30 December 1999 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

___JS___  ___MW___  __MM___ CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000035610	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000524	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.